People v. Kamakani CA6 ( 2013 )

Filed 11/6/13 P. v. Kamakani CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037675
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1065803)
v.
FRANCISCO KAMAKANI,
Defendant and Appellant.
In July 2011, defendant Francisco Kamakani, pursuant to a negotiated disposition,
pleaded guilty to attempted premeditated murder (Pen. Code, §§ 187, 664).1 He also
admitted allegations of premeditation (§ 189); that the crime was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and that he was 16 years of
age or older when the offense was committed within the meaning of Welfare and
Institutions Code section 707, subdivision (d) and that the offense was one enumerated in
subdivision (b) of that statute. Defendant was promised in exchange for this plea that the
seven remaining felony counts in the information (including premeditated murder and
four additional counts of attempted premeditated murder) would be dismissed, and that
he would receive a prison term of 15 years to life. The court--after advising defendant of
the constitutional rights he was waiving and confirming that he was voluntarily waiving
those rights in pleading guilty under the agreement--advised defendant that he would be
on parole for a period of three years after his release from prison. At the sentencing
1
Further statutory references are to the Penal Code unless otherwise stated.
hearing two and one-half months later, defendant, although represented by counsel,
personally requested leave to withdraw his guilty plea; he claimed, inter alia, that he had
been pressured by his family into agreeing to the plea bargain. The court denied the
request. It then sentenced him to prison for 15 years to life on the one attempted
premeditated murder conviction. It indicated that defendant, upon his release, would be
on parole for a term of seven years to life.
Defendant asserts two claims of error on appeal. First, he argues that a three-year
parole period was promised to him when he entered his guilty plea, but the court could
not legally impose it and was required to impose a more lengthy parole term. Therefore
(he contends), the court was required to give him a chance to withdraw his plea before
the imposition of this more severe sentence. And, defendant argues, to the extent that he
may have forfeited this challenge because it was not raised below, he was deprived of
effective assistance of counsel. Second, defendant argues that the court erred in imposing
a $129.75 criminal justice administration fee (booking fee), pursuant to Government
Code section 29550.1, without first determining that he had the ability to pay the fee. He
asserts that this statute should be read as impliedly requiring an ability-to-pay
determination, or, alternatively, the absence of such a requirement constituted a violation
of his constitutional right to equal protection under the law.
We reject defendant’s claim that he should have been afforded the opportunity to
withdraw his plea. In doing so, we conclude that defendant forfeited his claim that the
sentence violated the terms of his plea bargain, and his trial attorney’s failure to assert the
claim did not constitute ineffective assistance of counsel. We also reject defendant’s
statutory and constitutional challenges to the imposition of the booking fee. But to the
extent the abstract of judgment reflects an incorrect term of parole, we will direct the trial
court to correct it. We will affirm the judgment as so modified.
2
FACTS2
In July 2006, a longtime member of the El Hoyo Palmas Norteño street gang was
killed at a party. In December 2006, the brother of a member of that Norteño gang was
also killed. “These murders sparked an onslaught of murders directed at Sureño gang
members.”
On February 5, 2007, defendant and another El Hoyo Palmas Norteño gang
member approached three male Sureño gang members who were seated in a car in a
known Sureño neighborhood. Defendant and his associate fired at the three Sureño
males, and one was shot in the hand. Defendant was arrested 10 days later, and the police
found in his possession a nine-millimeter Manurhin handgun with the serial numbers
obliterated. From a ballistics test, the police determined that defendant’s handgun was
involved in the February 5, 2007 shooting incident. Defendant was also identified
through a photo lineup. A search of defendant’s home yielded a shotgun and gang
paraphernalia. Defendant was 16 at the time of the incident.
PROCEDURAL BACKGROUND
Defendant was charged with eight felonies in an information filed March 3, 2011,
i.e., conspiracy to commit murder (§ 182, subd. (a)(1); count 1); five counts of attempted
murder (§§ 664, 187; counts 2, 4, 6, 7, & 8); murder (§ 187; count 3); and shooting at an
inhabited dwelling (§ 246; count 5). The information included the following special
allegations: each of the eight crimes was committed for the benefit of, at the direction of,
and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); defendant was
a minor, 16 years old, within the meaning of Welfare and Institutions Code section 707,
subdivision (d)(1) at the time the offenses alleged in counts 1 through 4, and 6 through 8
were committed, and that the offenses were ones enumerated under section 707,
2
We present an abbreviated discussion of the facts underlying the conviction,
derived from the probation report, because they are not germane to the appellate claims.
3
subdivision (b) of the Welfare and Institutions Code; defendant committed the crimes
alleged in counts 2, 3, 4, 6, 7, and 8, by personally discharging a firearm (§ 12022.53);
the murder as alleged in count 3 was carried out to further the activities of a criminal
street gang (§ 190.2, subd. (a)(22)); and as to count 8, defendant personally inflicted great
bodily injury in the commission of the offense (§ 12022.7).
On July 1, 2011, pursuant to a negotiated disposition, defendant pleaded guilty to
attempted murder charged in count 8; admitted the allegation that the crime was
committed willfully, deliberately, and with premeditation (§ 189); admitted the gang
allegation (§ 186.22, subd. (b)(1)(C)); admitted the allegations under subdivisions (b) and
(d) of Welfare and Institutions Code section 707; and admitted the personal infliction of
great bodily injury allegation (§ 12022.7). He entered the plea with the understanding
that the remaining counts and enhancements (including the firearm enhancement in count
8) would be dismissed and that he would receive a 15-years-to-life prison sentence.
On September 23, 2011, the trial court sentenced defendant to 15 years to life in
prison, and dismissed counts 1 through 7 and the remaining enhancements. Defendant
filed a timely notice of appeal challenging the validity of the plea.3
DISCUSSION
I. Negotiated Plea Agreements
As the high court has explained: “Plea bargaining is an accepted practice in
American criminal procedure. [Citation.] The process is not only constitutionally
permissible [citation], but has been characterized as an essential and desirable component
of the administration of justice. [Citation.] Concomitant with recognition of the
necessity and desirability of the process is the notion that the integrity of the process be
maintained by insuring that the state keep its word when it offers inducements in
3
Defendant, upon application, obtained a certificate of probable cause. (See Cal.
Rules of Court, rule 8.304(b).)
4
exchange for a plea of guilty.” (People v. Mancheno (1982) 32 Cal.3d 855, 859-860, fn.
omitted (Mancheno).) “The negotiated plea agreement, which results in the waiver of
important constitutional rights, ‘is an accepted and integral part of our criminal justice
system.’ [Citations.] Such agreements benefit the system by promoting speed, economy
and finality of judgments.” (People v. Panizzon (1996) 13 Cal.4th 68, 79-80.)
Before accepting a guilty plea pursuant to a negotiated disposition, the court must
admonish the defendant of the constitutional rights he or she is waiving (Boykin v.
Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122), and must advise the
defendant of the direct consequences of the plea (Bunnell v. Superior Court (1975) 13
Cal.3d 592, 605 (Bunnell)). The matter of parole is one such plea consequence of which
the defendant must be advised by the court under Bunnell. (In re Moser (1993) 6 Cal.4th
342, 351-352 (Moser).) At the time the plea is taken, if the court approves the plea, “it
shall inform the defendant prior to the making of the plea that (1) its approval is not
binding, (2) it may, at the time set for the hearing on the application for probation or
pronouncement of judgment, withdraw its approval in the light of further consideration of
the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her
plea if he or she desires to do so. The court shall also cause an inquiry to be made of the
defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a
factual basis for the plea.” (§ 1192.5.) If the plea agreement is not accepted by the
People and approved by the court, the guilty or no contest plea is “deemed withdrawn.”
(Ibid.)
“[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262.) Due
process applies not only to the acceptance of the plea; “the requirements of due process
attach also to implementation of the bargain itself. It necessarily follows that violation of
the bargain by an officer of the state raises a constitutional right to some remedy.”
5
(Mancheno, supra, 32 Cal.3d at p. 860.) Where a violation of a plea bargain occurs, the
typical remedy is “to allow [the] defendant to withdraw the plea and go to trial on the
original charges.” (Ibid.) Alternatively, the court may specifically enforce the bargain,
but will find the plea withdrawal remedy more appropriate “when specifically enforcing
the bargain would have limited the judge’s sentencing discretion in light of . . . additional
information or changed circumstances between acceptance of the plea and sentencing.”
(Id. at p. 861.)
II. Court Was Not Required to Permit Defendant to Withdraw His Plea
A. Background
At the commencement of the hearing on July 1, 2011, defense counsel and the
prosecution advised the court that the parties had arrived at a negotiated disposition.
Under the terms of the plea bargain as recited by counsel, defendant agreed to plead
guilty to count 8 (premeditated attempted murder) and to admit the gang enhancement
associated with that charge. In exchange, defendant would receive “guaranteed 15[-]to[-
]life top/bottom” prison sentence. The plea bargain included the agreement that the
People would dismiss the remaining counts and enhancements.
After the court advised defendant of the rights he was giving up as a result of his
guilty plea and confirmed that he was knowingly and voluntarily pleading guilty, it
indicated, with confirmation from the People, that “[u]pon your release from state prison,
you will be placed on parole for up to three years . . . .” The court also advised defendant
that it had approved the disposition, but that it could withdraw that approval at the time of
the pronouncement of judgment, in which case defendant would be allowed to withdraw
his guilty plea. After the court confirmed the terms of the plea bargain and advised
defendant of the rights he was waiving by pleading guilty, defendant pleaded guilty to
count 8, admitted the premeditation and gang allegations, and admitted that he was a
minor, 16 years of age or older, at the time of the commission of the offense as alleged
under Welfare and Institutions Code section 707, subdivision (d)(1). The court found
6
defendant to have (1) been properly advised of the charges against him, the elements of
those charges and of the possible defenses thereto; (2) been informed of the consequences
of his plea and admissions; (3) been fully informed of his constitutional rights; and (4)
made a knowing, intelligent, free, and voluntary waiver of his constitutional rights. The
court also found the existence of a factual basis for the plea, pursuant to counsel’s
stipulation thereof.
At the sentencing hearing on September 23, 2011, defense counsel, upon the
court’s asking counsel whether there was any legal cause as to why judgment could not
then be imposed, advised the court that “[t]he only legal cause [is that] Mr. Kamakani
desires to make an oral motion to withdraw the plea.” The court then, without further
comment by defense counsel, allowed defendant himself to make an oral statement.
Defendant advised the court that on the day of the change of plea hearing, he had
received an extreme amount of pressure from his family; at the time of the hearing, he
had not received discovery about which he had informed his attorney; his attorney had
told him that the plea deal would not be on the table if he did not accept it that day;
afterwards, he received discovery that led him to conclude that his chances of proceeding
to trial were improved; and had he not talked with his family, he would not have accepted
the plea deal. The court denied defendant’s oral motion to withdraw his guilty plea.
The trial court then sentenced defendant on the count 8 conviction to 15 years to
life in prison. The court advised defendant that upon his release from prison, he would be
subject to parole for a period of seven years to life. The court also dismissed all
remaining charges and enhancements.
B. Contentions of the Parties
Defendant contends that the trial court was required to give him the opportunity to
withdraw his guilty plea. His central point is that the court’s imposition of a sentence
that included a parole term of seven years to life after his release from prison constituted
a more severe sentence than the three-year parole term promised by the court and
7
concurred in by the People. In support of this position, defendant cites People v. Johnson
(1974) 10 Cal.3d 868 (Johnson). There, the high court held that when the trial court
ultimately rejects a plea bargain and announces an intention to impose a sentence more
severe than the one the defendant originally agreed to, section 1192.5 requires that the
defendant be permitted to withdraw his guilty plea. (Johnson, supra, at pp. 872-873.)
Defendant argues further that when the court is jurisdictionally unable to impose the
agreed upon sentence and must impose a more severe sentence (i.e., because the agreed-
upon sentence is unauthorized under the law), a defendant must be allowed to withdraw
his or her plea. (See People v. Baries (1989) 209 Cal.App.3d 313, 319 (Baries).)
Defendant concedes that he did not object below to the imposition of a sentence he
contends was more severe than the one promised him by the court and thus was at
variance with his plea bargain. But he argues that he should not be deemed to have
forfeited his appellate challenge. Defendant argues that, in the alternative, if the claim
was forfeited, his attorney’s failure to object to the sentence and to move to withdraw his
client’s guilty plea constituted ineffective assistance of counsel.
The Attorney General responds that the record “reflects that the potential parole
term was not a negotiated term of the negotiated disposition.” She also argues that
defendant “failed to alert the trial court that the mistaken admonishment on the potential
parole term was a basis for withdrawal of the plea and [he therefore] forfeited that
appellate claim.” The Attorney General asserts further that defendant’s alternative
ineffective assistance of counsel claim must fail because he cannot show prejudice.
C. There Was No Breach of the Plea Bargain
1. The Claim Was Forfeited
In support of his contention that his claim was not forfeited, defendant argues: “It
was clear that Mr. Kamakani’s counsel was not pursuing any attempt to withdraw the
guilty plea. At the beginning of the hearing, counsel made clear that Mr. Kamakani
would be making his own oral motion to withdraw [the plea]. After rejecting Mr.
8
Kamakani’s oral motion, the trial court told Mr. Kamakani that it was going ‘forward
with the negotiated disposition . . . .’ So Mr. Kamakani may very well have believed this
and been mislead [sic] into thinking that the court was imposing the same sentence it had
promised at the guilty plea hearing . . . . Under these circumstances, where defendant
was effectively representing himself in connection with any motion to withdraw the plea,
and where the trial court’s statements could have mislead [sic] a lay defendant, the court
should address the merits of this claim.”
We disagree with defendant’s position. “ ‘The purpose of the general doctrine of
waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the
trial court, so that they may be corrected or avoided and a fair trial had.’ ” (People v.
Walker (1991) 54 Cal.3d 1013, 1023 (Walker), overruled on other grounds in People v.
Villalobos (2012) 54 Cal.4th 177, 180.) That principle applies here. Defendant, upon
hearing the sentence announced by the court, could have easily raised an objection
thereto by asserting that the seven-years-to-life parole term constituted a material
variance from the plea bargain to which he agreed. The court then could have heard
argument from both defense counsel and the prosecutor on the matter and could have
rendered a decision as to whether the proposed sentence, in fact, was more severe than
the bargain to which the parties agreed, thereby permitting defendant to withdraw his
plea. The claim was forfeited.
2. Defendant’s Ineffective Assistance of Counsel Claim
a. Ineffective Assistance of Counsel Claims
A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles a defendant
not simply to “ ‘bare assistance’ ” but rather to effective assistance. (People v. Jones
(1991) 53 Cal.3d 1115, 1134.) There are two elements to an ineffective assistance of
counsel claim: (1) deficient performance, and (2) prejudice resulting from such deficient
performance. (People v. Weaver (2001) 26 Cal.4th 876, 961.) The deficient performance
9
element consists of “a showing that ‘counsel’s representation fell below an objective
standard of reasonableness.’ ” (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting
Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) “ ‘In determining
whether counsel’s performance was deficient, a court must in general exercise deferential
scrutiny . . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions
. . . under the circumstances as they stood at the time that counsel acted or failed to act.’ ”
(People v. Scott (1997) 15 Cal.4th 1188, 1212.) Moreover, “[i]f the record does not shed
light on why counsel acted or failed to act in the challenged manner, we must reject the
claim on appeal unless counsel was asked for and failed to provide a satisfactory
explanation, or there simply can be no satisfactory explanation.” (Ibid.) To satisfy the
second element of “prejudice,” the defendant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result would have been more
favorable to defendant, i.e., a probability sufficient to undermine confidence in the
outcome.” (In re Ross (1995) 10 Cal.4th 184, 201.)
The burden of establishing ineffective assistance of counsel is upon the party
claiming it. (People v. Pope (1979) 23 Cal.3d 412, 425.) This means that defendant here
“must show both that his counsel’s performance was deficient when measured against the
standard of a reasonably competent attorney and that counsel’s deficient performance
resulted in prejudice to [the] defendant in the sense that it ‘so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.’ ” (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland,
supra, 466 U.S. at p. 686.)
“Surmounting Strickland’s high bar is never an easy task.” (Padilla v. Kentucky
(2010) 559 U.S. 356, 371.) And in deciding an ineffective assistance of counsel claim,
the reviewing court need not inquire into the two components (deficient performance and
prejudice) in any particular order; in the event the defendant’s showing on one
component is insufficient, the court need not address the remaining component. (In re
10
Cox (2003) 30 Cal.4th 974, 1019-1020.) “The object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
b. Defendant’s Ineffective Assistance of Counsel Claim Fails
As we discuss, post, defendant’s ineffective assistance of counsel claim must be
resolved against him because he cannot demonstrate prejudice. We therefore do not
address the first prong of his ineffective assistance of counsel claim, i.e., whether the
failure of his counsel to object to the proposed sentence constituted deficient
performance. (In re Cox, supra, 30 Cal.4th at pp. 1019-1020.)
Defendant claims that he sustained prejudice because of his attorney’s failure to
object that the sentence imposed was contrary to, and more severe than, the sentence he
“was promised in obtaining the guilty plea.” He argues that “the correct prejudice
inquiry must ask whether that motion [to withdraw the guilty plea] would have been
successful. If the motion would have been successful, prejudice has been shown. If the
motion would have failed, there is no prejudice.” Accordingly, in the context of deciding
whether defendant has established prejudice--i.e., whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result would have been more
favorable to defendant” (In re Ross, supra, 10 Cal.4th at p. 201)--we examine the
underlying merits of defendant’s claim that the sentence constituted a breach of what was
promised him when he pleaded guilty, thereby entitling his withdrawal of the guilty plea.
In analyzing whether the sentence imposed was in violation of what was promised
him when he pleaded guilty, we follow the two-step approach enunciated by our high
court in Walker, supra, 54 Cal.3d at pages 1019 to 1020, namely, whether (1) the
defendant has been properly admonished before pleading guilty under a negotiated plea,
and (2) there has been adherence to the terms of the plea bargain. (Moser, supra, 6
Cal.4th a p. 351.) Here, we ask (1) whether defendant was properly admonished when he
11
entered his guilty plea, insofar as the court’s recital that he would receive a three-year
parole term upon completion of his prison sentence; and (2) whether the imposition of the
seven-years to life parole term constituted a violation of the plea agreement?
It is clear that the answer to the first question is “No.” The trial court erroneously
advised defendant that one consequence of his guilty plea was that he would receive a
three-year parole term upon being released from prison. Because, defendant argues, the
three-year parole term applies to those sentenced to a term of less than life in prison, and
defendant here was sentenced to a life term (15 years-to-life), under section 3000,
subdivision (b)(1), he was in fact subject to a five-year parole term; the court misadvised
defendant that the parole term would be three years. The Attorney General concedes that
the court misadvised defendant concerning the length of the parole term.4 The court’s
failure to advise, or misadvisement, of the parole consequences of a guilty plea is a
violation of the court’s obligation under Bunnell, supra, 13 Cal.3d at page 605, to advise
a criminal defendant of the direct consequences of his or her conviction upon entry of a
guilty plea. (Moser, supra, 6 Cal.4th at pp. 351-352; see also People v. Nuckles (2013)
56 Cal.4th 601, 609.)
But as the high court has explained, establishing that the trial court failed to advise
or gave an incorrect advisement of the consequences of a defendant’s plea does not
automatically entitle him or her to relief; the defendant must also show that prejudice
resulted from the error, namely, that he or she “would not have entered the plea of guilty
had the trial court given a proper advisement.” (Moser, supra, 6 Cal.4th at p. 352.) Here,
defendant has made no such showing. Nor does he argue that he is entitled to relief based
upon the court misadvising him of the consequences of his plea. Rather, he bases his
claim on the fact that the sentence imposed was more severe than the one promised him
4
The Attorney General refers to the court’s statement to defendant that he would
be subject to a three-year parole term as “the trial court’s mistaken admonishment.”
12
in the plea bargain because it included a parole term of more than three years. We
therefore turn to the second question under Walker, supra, 54 Cal.3d at pages 1019 to
1020, namely, whether there has been adherence to the terms of the plea bargain.
As the high court has explained, “ ‘A court may not impose punishment
significantly greater than that bargained for by finding the defendant would have agreed
to the [additional] punishment had it been made a part of the plea offer. “Because a court
can only speculate why a defendant would negotiate for a particular term of a bargain,
implementation should not be contingent on others’ assessment of the value of the term to
defendant.” ’ ” (Moser, supra, 6 Cal.4th at p. 354, quoting Walker, supra, 54 Cal.3d at p.
1026.) Thus, in order for defendant to prevail on his assertion that the sentence imposed
was materially at variance with the sentence he was promised when he pleaded guilty, he
must establish that the three-year parole term to which the trial court alluded was a
specific term of the bargain. The record reflects that it was not.
As noted, at the outset of the change of plea hearing, defense counsel announced
that there had been “a proposed disposition. That disposition is to enter a plea to Count
8. The arming enhancement I believe is going to be dismissed. He will admit. Of
course, it will be a strike offense in the future. This is guaranteed 15 to life top/bottom.”
The prosecutor then acknowledged that this comported with her understanding of the plea
agreement; she added that “in exchange for his plea of guilty to the premeditated
attempted murder with the gang enhancement and admission to the [Welfare and
Institutions Code section] 707[, subdivision] (d) [allegation] in Count 8, the People will
be dismissing all other charges and the [section] 12022.53 [allegation] on the Count 8
charge, which is the gun enhancement.” Neither counsel mentioned the term of parole as
a term of the plea bargain.
The trial court then asked defendant whether (1) he was thinking clearly; (2) he
had consumed alcohol, drugs, or medication that might have impaired his ability to think
clearly; (3) he had enough time to consult with his attorney and had discussed with him
13
the charges, possible defenses thereto, his constitutional rights, and the consequences of
his decision to plead guilty; and (4) he was satisfied with his attorney’s advice. The court
then asked defendant: “Besides what has been stated on the record, have there been any
other promises or conditions made to you in exchange for your plea of guilty this
afternoon?” Defendant responded, “No, sir.” Following the court’s advising defendant
of the constitutional rights that he would be waiving by pleading guilty, the following
exchange between the court and defendant occurred: “The Court: The maximum
possible state prison sentence for the charges and allegations for which you will enter a
change of plea . . . . [¶] . . . [¶] [i]s 15 years to life that has already been stated on the
record. You must serve 15 years before you are eligible for parole. Do you understand
that? [¶] Defendant: Yes, sir. [¶] The Court: Obviously, you will not be considered for
probation or for a lesser term in state prison. That’s essentially the only promise that is
being made to you other than all charges and allegations will be dismissed. Is that your
understanding? [¶] Defendant: Yes, sir.” It is only after this entire exchange occurred
that the court erroneously advised defendant that upon his release from prison, he would
be placed on parole for three years.
It is clear that a three-year period of parole was not a term of “ ‘punishment . . .
that [was] bargained for’ ” by defendant and the prosecution. (Moser, supra, 6 Cal.4th at
p. 354.) Nor could the length of defendant’s parole be a proper subject of the plea
bargain. “[T]he length of a parole term is not a permissible subject of plea negotiations. .
. . Neither the prosecution nor the sentencing court has the authority to alter the
applicable term of parole established by the Legislature.” (Id. at p. 357; cf. People v.
McClellan (1993) 6 Cal.4th 367, 379-380 [rejecting claim that inclusion of sex offender
registration in sentence violated the plea agreement; registration was a statutory
requirement and not a permissible subject of plea agreement negotiation].)
In People v. Avila (1994) 24 Cal.App.4th 1455 (Avila), we were faced with a
question nearly identical to the matter raised here. In Avila, the defendant pleaded guilty
14
to second degree murder pursuant to a negotiated plea in which he would receive a 15-
years-to-life prison sentence. (Id. at p. 1457.) The court advised him at the time he
pleaded guilty that after completion of his prison term, he would be on parole for a period
of up to three years. (Id. at p. 1458.) The defendant moved to withdraw his plea prior to
sentencing; he argued that he had been misadvised as to the parole period, which was in
fact a life term, and that this error constituted a violation of his plea bargain. (Ibid.) The
trial court denied the motion, concluding that the parole period was not a term of the plea
bargain. (Ibid.) We rejected the defendant’s appellate challenge.
We concluded first that although the misadvisement constituted error under
Bunnell, supra, 13 Cal.3d 592, the defendant had failed to show prejudice. (Avila, supra,
24 Cal.App.4th at pp. 1459-1460.) Secondly, we rejected the defendant’s claim that he
should have been allowed to withdraw his guilty plea because there was a breach of the
plea bargain. We reasoned: “[W]e cannot agree that such a violation occurred. First,
there is no evidence that a three-year maximum parole period was ‘a subject of
negotiation (or even discussion) during the plea-negotiation process, or that the
prosecutor made any promises or inducements relevant to the challenged element.
[Citation.]’ [Citation.] Second, the parole period was a statutorily mandated
consequence of defendant’s conviction; it therefore could not have been the subject of
negotiations or a condition of the final agreement. [Citations.] We must conclude,
therefore, that the trial court’s erroneous advisement regarding the parole period did not
violate a term of the plea bargain.” (Id. at p. 1461, fn. omitted.)
Similarly, in Berman v. Cate (2010) 187 Cal.App.4th 885, 888 (Berman), the
petitioner, who had served a prison term after pleading guilty pursuant to a plea bargain
and was placed on parole, challenged the Department of Corrections and Rehabilitation’s
action of increasing the term of his parole from three years to five years. He argued that
the three-year parole period “was an integral term of his plea agreement.” (Id. at p. 893.)
Relying in part on Avila, supra, 24 Cal.App.4th 1455, the court rejected the claim,
15
finding that there was no evidence that the length of parole was a subject of negotiation.
(Berman, supra, at p. 893.) The court reasoned: “The [trial] court . . . summarized the
terms of the negotiated plea, stating only that petitioner would receive a three-year prison
sentence in exchange for his guilty plea and waiver of accumulated credits. No mention
of any promised term of parole upon release was made. When asked if petitioner had
been promised anything else in exchange for his plea, petitioner replied in the negative.
This . . . strongly reflects that the referenced parole term was merely an advisement of the
consequences of his plea, not a term that induced or provided consideration for petitioner
to enter his plea.” (Id. at p. 894.) The Berman court also noted that a number of courts
had held that “ ‘the length of a parole term is not a permissible subject of plea
negotiations.’ ” (Ibid., quoting Moser, supra, 6 Cal.4th at p. 357.)
We find our reasoning in Avila and the analysis of the Fourth District Court of
Appeal, Division Two, in Berman to be equally sound here. And we reject defendant’s
assertion that we should disregard Avila because “the legal claims Mr. Kamakani is
making are far different from the claims made in Avila.” Defendant argues that he,
unlike the defendant in Avila, is not the asserting “that the length of parole was a ‘term’
of the negotiated plea.” But elsewhere, he argues repeatedly that he should have been
permitted to withdraw his guilty plea because the sentence imposed was more severe than
the one he was “promised” when he pleaded guilty. We see no distinction between the
contention that defendant was “promised” a more lenient sentence than what he
ultimately received, and the claim that the more lenient sentence was a term of the plea
bargain that was breached. In either case, we view the controlling question to be this:
When the court misadvises defendant about the anticipated length of his parole (but that
parole length is not part of the plea bargain), must he be afforded the opportunity to
withdraw his guilty plea when the ultimate parole term at sentencing is less favorable?
Here, as in Avila and Berman, this question must be answered in the negative.
16
Defendant argues that Baries, supra, 209 Cal.App.3d 313 compels the conclusion
that he should have been permitted to withdraw his guilty plea because “the court
promised him something that it was unable to deliver--a three-year parole term.” In
Baries, both the People and the defendant appealed from the judgment after the trial court
imposed a prison sentence for offenses committed in Santa Clara County to run
concurrently with a prison term the defendant received for offenses committed in Merced
County. (Id. at p. 316.) The People argued that the sentence was unauthorized because
consecutive sentencing was required under section 12022.1, and the defendant agreed
with that position but argued that the court’s imposition of a concurrent sentence was in
effect an exercise of its discretion under section 1385 in striking an enhancement.
(Baries, supra, at p. 316.) We concluded in Baries that the concurrent sentence was
unauthorized. (Id. at p. 319.) But because “[c]oncurrency was an express condition of
the [parties’] plea [agreement]” (id. at p. 316), we held that the defendant had to be given
the opportunity to withdraw her plea if she so desired. (Id. at p. 319.)
Here, as we have concluded, the three-year parole term was merely an advisement
by the court; it was not “an express condition of the plea,” unlike concurrency in Baries,
supra, 209 Cal.App.3d at page 316. Defendant’s reliance upon Baries is therefore
misplaced.
Defendant’s reliance on Johnson, supra, 10 Cal.3d 868 is similarly misplaced. In
that case, “the trial court withdrew its prior approval of a negotiated plea bargain but
failed to advise [the] defendant of his statutory right to withdraw his guilty plea made in
consideration of the rejected bargain.” (Id. at p. 870.) The key element of the plea
bargain that the court ultimately rejected was receiving a county jail sentence instead of
incarceration in state prison. (Ibid.) The court withdrew its approval of the plea bargain
after learning that the defendant had concealed his true identity and his prior criminal
record. (Id. at pp. 870-871.) The high court concluded that the trial court erred by failing
to comply with section 1192.5, in that it should have informed the defendant at the time
17
he pleaded guilty of his right to withdraw his plea if it ultimately rejected the plea
bargain, and once it rejected the bargain, it should have given him the right to withdraw
his plea. (Johnson, supra, at pp. 871-873.) Here, the court did not reject the plea
bargain, as the three-year parole term of which the court misadvised defendant when he
pleaded guilty was not a term of the bargain. Accordingly, Johnson does not assist
defendant.
“[I]n order to be deemed a term of a plea agreement, the circumstances must show
that the ‘ “ ‘plea rest[ed] in [a] significant degree on a promise or agreement . . . so that it
can be said to be part of the inducement or consideration . . . .’ ” ’ ” (Berman, supra, 187
Cal.App.4th at p. 893, quoting Walker, supra, 54 Cal.3d at p. 1024.) The three-year
parole period the court erroneously advised defendant here was a purported consequence
of his guilty plea. It was not a term of the plea bargain, because defendant’s plea did not
rest on it and it was not an inducement or consideration in his agreement to plead guilty
to the attempted premeditated murder count alleged in the information. Accordingly,
since any motion to withdraw defendant’s plea on the ground that the sentence allegedly
deviated from the terms of the plea bargain would have lacked merit, defendant cannot
establish the prejudice prong of his ineffective assistance of counsel claim. (In re Cox,
supra, 30 Cal.4th at pp. 1019-1020.)5
5
Defendant argues in the alternative that because the seven years to life parole
term was unauthorized, it should be ordered stricken. The abstract of judgment indicates:
“Advised of 7 years to life parole/appeal rights.” To the extent that this portion of the
abstract may be construed as fixing the term of parole, as opposed to an advisement, it is
unauthorized. (Berman, supra, 187 Cal.App.4th at p. 898 [Board of Parole Hearings “has
sole authority, within the confines set by the Legislature, to set the length of parole and
the conditions thereof.”].) Accordingly, we will direct the trial court to prepare an
amended abstract striking the sentence, “Advised of 7 years to life parole/appeal rights,”
and replacing it with “Advised of appeal rights. Length of parole following release from
prison shall be set by the Board of Parole Hearings as provided by California law.”
18
III. Defendant’s Challenge to the Booking Fee Lacks Merit
A. Background and Contentions of the Parties
At sentencing, the trial court imposed a booking fee of $129.75, payable to the
City of San José. It noted that it was being “imposed pursuant to Government Code
[sections] 29550[,] . . . 29550.1 and [29550.2].” The court neither inquired about
defendant’s ability to pay the fine nor made a specific finding about defendant’s ability to
pay. Beyond identifying the three Government Code sections, the court did not specify
the statutory authority under which this booking fee was being imposed. But the parties
agree that because defendant was arrested by city authorities (specifically, the City of San
José police), Government Code section 29550.1 was the statute under which the booking
fee was imposed.
Defendant claims that the trial court erred because it did not make a determination
of defendant’s ability to pay the booking fee, and he is, in fact, indigent. He
acknowledges that the statute under which the booking fee was imposed here (Gov.
Code, § 29550.1) does not specifically require the court to determine that the defendant
has the ability to pay the fee. But he contends that because comparable booking fee
statutes (id., §§ 29550, subd. (d)(2) & 29550.2, subd. (a)) contain an ability-to-pay
condition, we should imply such a requirement under Government Code section 29550.1.
In the alternative, if the statute cannot be so construed, the imposition of the booking fee
here without such an ability-to-pay determination violated his equal protection rights
under the federal and state Constitutions.
The Attorney General contends that defendant forfeited this challenge. She argues
further that even were the claim not forfeited, the equal protection claim fails.
19
B. Forfeiture
We consider as a threshold matter whether defendant’s equal protection claim has
been forfeited because he failed to assert it below.6 We conclude that even were the
constitutional claim forfeited--a finding we do not make here--we will address it on its
merits as a question of law submitted on undisputed facts.
“ ‘ “No procedural principle is more familiar to this Court than that a
constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it.” ’ ” (People v. Saunders (1993) 5 Cal.4th 580, 590, quoting
United States v. Olano (1993) 507 U.S. 725, 731.) The purpose of the forfeiture doctrine
“ ‘is to encourage a defendant to bring errors to the attention of the trial court, so that
they may be corrected or avoided and a fair trial had. . . .’ ” (Walker, supra, 54 Cal.3d at
p. 1023.)
Our high court has applied the doctrine of forfeiture in a variety of contexts to bar
claims not preserved in the trial court in which the appellant had asserted an abridgement
of fundamental constitutional rights. (See, e.g., People v. Williams (1997) 16 Cal.4th
153, 250; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) Courts in a number
of instances have found that the appellant’s unpreserved equal protection claim, such as
the one made by defendant here, was forfeited. (See, e.g., People v. Alexander (2010) 49
Cal.4th 846, 880, fn. 14; People v. Burgener (2003) 29 Cal.4th 833, 861, fn. 3.)
Application of the forfeiture doctrine to the area of sentencing “is of recent vintage.”
(People v. McCullough (2013) 56 Cal.4th 589, 594 (McCullough); see also People v.
Scott (1994) 9 Cal.4th 331, 354 [challenge to sentence forfeited where sentence “though
6
While “ ‘waiver’ ” is the term commonly used to describe a party’s loss of the
right to assert an appellate challenge based upon the failure to raise an objection below, “
‘forfeiture’ ” is the more technically accurate term. (In re S.B. (2004) 32 Cal.4th 1287,
1293, fn. 2.)
20
otherwise permitted by law, [was] imposed in a procedurally or factually flawed
manner”]; People v. Welch (1993) 5 Cal.4th 228, 237 [unpreserved challenge to
reasonableness of probation conditions forfeited].)
Defendant did not raise any challenge below to the imposition of the booking fee.
Were defendant’s challenge here one based simply upon the insufficiency of the evidence
of defendant’s ability to pay the booking fee the court imposed, such challenge would be
forfeited under the high court’s recent decision in McCullough. There, the defendant
challenged the sufficiency of the evidence to support a booking fee imposed under
Government Code section 29550.2, subdivision (a). (McCullough, supra, 56 Cal.4th at
pp. 590-591.) The high court held “that because a court’s imposition of a booking fee is
confined to factual determinations, a defendant who fails to challenge the sufficiency of
the evidence at the proceeding when the fee is imposed may not raise the challenge on
appeal.” (Id. at p. 597.)7
But the nature of defendant’s challenge here is a constitutional one. Therefore, we
do not find that under McCullough, he forfeited this challenge by failing to assert it
below. An appellate court may reach the merits of a constitutional claim when it is “ ‘one
of law presented by undisputed facts in the record before us that does not require the
scrutiny of individual circumstances, but instead requires the review of abstract and
generalized legal concepts--a task that is suited to the role of an appellate court.’ ”
(People v. Delacy (2011) 192 Cal.App.4th 1481, 1493; see In re Sheena K. (2007) 40
Cal.4th 875, 885 (Sheena K.).) Moreover, even were we to find that defendant forfeited
7
In briefing filed before McCullough was decided, defendant argued that his claim
was not forfeited under the authority of People v. Pacheco (2010) 187 Cal.App.4th 1392(Pacheco). In Pacheco, this court held that the defendant’s challenges to the court’s
imposition of a booking fee under either Government Code sections 29550, subdivision
(c) or 29550.2 were not forfeited, notwithstanding his failure to object to them at the trial
court. (Pacheco, supra, at p. 1397.) The high court in McCullough disapproved of
Pacheco on this issue. (McCullough, supra, 56 Cal.4th at p. 599.)
21
his equal protection challenge, we nonetheless elect to decide it on the merits. (Sheena
K., supra, at p. 887, fn. 7 [appellate courts may exercise their discretion to review
otherwise forfeited claims, generally ones involving important constitutional issues or
substantial rights].)
C. Constitutional Challenge
There are two requirements for a successful equal protection challenge. First,
there must be “ ‘a showing that the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.’ ” (People v. Hofsheier (2006) 37
Cal.4th 1185, 1199 (Hofsheier), quoting In re Eric J. (1979) 25 Cal.3d 522, 530.)
Secondly, the party asserting the claim must show that there is no rational relationship to
a legitimate state purpose for the state’s having made a distinction between the two
similarly situated groups. (Hofsheier, supra, at pp. 1200-1201.)8 Defendant’s equal
protection challenge to Government Code section 29550.1 fails because neither
prerequisite is satisfied.
With respect to the first--“similarly situated groups”--prerequisite (Hofsheier,
supra, 37 Cal.4th at p. 1199), persons who are subject to the imposition of booking fees
under Government Code section 29550.1 are not similarly situated to criminal defendants
who are potentially subject to booking fees imposed under Government Code sections
29550 and 29550.2. The statutory scheme here provides for payment orders and
probation conditions effecting the reimbursement of counties for at least part of their
costs in booking persons arrested by their own officers and the officers of other entities
8
“Of course, there are three potential standards by which to measure the
challenged classifications under an equal protection analysis--strict scrutiny, rational
basis, and an intermediate level of review applicable to gender classifications.
(Hofsheier, supra, 37 Cal.4th at p. 1200.) However, legislation is usually subjected to a
rational basis analysis (ibid.) . . . .” (People v. Cavallaro (2009) 178 Cal.App.4th 103,
110, fn. 9.) Defendant concedes that the equal protection analysis in this case is governed
by the rational basis standard.
22
such as municipalities and the state. (Id., §§ 29550-29550.2.) It classifies defendants
according to the identity of the entity whose employees arrest them. Government Code
section 29550.1 applies to persons arrested by an officer or agent of a “city, special
district, school district, community college district, college, university, or other local
arresting agency.” Government Code section 29550, subdivision (d) applies to
defendants arrested by officers of a county. And Government Code section 29550.2,
subdivision (a) applies to arrests by a “governmental entity not specified in Section
29550 or 29550.1.”
Defendant’s challenge is based upon the fact that on the face of the statutes, a local
arrestee (as to whom Gov. Code, § 29550.1 applies) may be required to pay a booking fee
without any showing that he is able to pay it; in contrast county and state arrestees (as to
whom Gov. Code, §§ 29550 or 29550.2 may apply) may only be subjected to such a fee
if they are shown to have an ability to pay it. For purposes of the statutes challenged
here, local arrestees are not “similarly situated” to county and state arrestees. The lack of
similarity arises from the fact that under Government Code section 29550.1, a local
arrestee is only liable for the fee “imposed by a county.” The quoted phrase is manifestly
a reference to the charge described in Government Code section 29550, subdivision
(a)(1), which entitles a county to “impose a fee” on a local arresting agency “for
reimbursement of county expenses incurred with respect to the booking or other
processing of persons arrested by an employee” of that agency. Under that statute, the
fee so imposed by the county “shall not exceed one-half” of the county’s actual
administrative costs. (Gov. Code, § 29550, subd. (a)(1).) And it is this charge which is
passed on to the local arrestee by Government Code section 29550.1. Therefore, a local
arrestee, such as defendant here, is liable for only one-half of the amount of booking fees
for which county or state arrestees are potentially liable under Government Code sections
29550 and 29550.2, respectively. Therefore, local arrestees who are potentially liable for
23
booking fees imposed under Government Code section 29550.1 are not similarly situated
to county or state arrestees.
Even if we were to conclude that defendant has satisfied the “similarly situated”
test, the considerations we have discussed above establish a rational basis for the
differential treatment of which he complains. Government Code section 29550.1 denies
local arrestees, such as defendant, a benefit granted to other arrestees, i.e., the possibility
of avoiding an assessment because he lacks the ability to pay it. But in conjunction with
Government Code section 29550, subdivision (a)(1), it also grants local arrestees a
benefit denied to county and state arrestees: local arrestees are effectively granted
automatic forgiveness of half of their debt. The Legislature could have rationally
concluded that this arrangement justified the exclusion of an ability-to-pay condition as to
local arrestees because other arrestees are exposed to a potential debt double the size. A
statutory classification “ ‘ “must be upheld . . . if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification. [Citations.]
Where there are ‘plausible reasons’ for [the classification] ‘our inquiry is at an end.’ ” ’ ”
(Kasler v. Lockyer (2000) 23 Cal.4th 472, 482; see also Hofsheier, supra, 37 Cal.4th at
pp. 1200-1201.)
For the foregoing reasons, we reject defendant’s claim that the imposition of the
booking fee under Government Code section 29550.1 violated his constitutional right to
equal protection.
D. Statutory Interpretation Challenge
In conjunction with his claim that Government Code section 29550.1 constitutes a
violation of his equal protection rights, defendant contends that the statute should be read
as containing an implied ability-to-pay finding by the trial court. He argues that “the
omission of language requiring consideration of a defendant’s ability to pay may have
been a drafting oversight.” We reject this contention.
24
As defendant acknowledges, Government Code section 29550.1 contains no
requirement that the court, in imposing a booking fee, make a finding of the defendant’s
ability to pay the fee. The statute reads flatly: “A judgment of conviction shall contain
an order for payment of the amount of the criminal justice administration fee by the
convicted person . . . .” (Gov. Code, § 29550.1.) Defendant’s argument that the absence
of an ability-to-pay condition “may have been a drafting oversight” is simply speculation.
He cites no legislative history or evidence of legislative intent, or any other matter (other
than Gov. Code, §§ 29550 & 29550.2) to support his contention. “ ‘If the words of the
statute are clear, the court should not add to or alter them to accomplish a purpose that
does not appear on the face of the statute or from its legislative history.’ ” (California
Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698.) And
as also applicable here, “ ‘ “[a]n intent that finds no expression in the words of the statute
cannot be found to exist. The courts may not speculate that the legislature meant
something other than what it said. Nor may they rewrite a statute to make it express an
intention not expressed therein.” ’ ” (Mutual Life Ins. Co. v. City of Los Angeles (1990)
50 Cal.3d 402, 412.) Finding no intent or evidence of a drafting oversight, we will not
imply an ability-to-pay condition here.
We acknowledge that “statutes or statutory sections relating to the same subject
must be harmonized, both internally and with each other, to the extent possible.” (Dyna-
Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) But we
see no disharmony between the requirements under Government Code sections 29550
and 29550.2 that the court make an ability-to-pay determination before assessing the
booking fee, and the absence of such a requirement under Government Code section
29550.1. Indeed, the absence of an ability-to-pay required finding in Government Code
section 29550.1, in light of express requirements under Government Code sections 29550
and 29550.2, are indicative that the Legislature did not intend there to be such an ability-
to-pay requirement under the former code section. “[T]he Legislature has demonstrated
25
that, if it intends to establish [this] requirement[], it knows how to draft statutory
language expressly doing so. The Legislature’s omission of this language . . . therefore
suggests that it did not intend to establish [the requirement].” (Estate of Joseph (1998) 17
Cal.4th 203, 220 (dis. opn. of Chin, J.); see also Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 735 [Legislature has shown it “knows how to create an exemption
from the anti-SLAPP statute when it wishes to do so”].) And as we have stated, ante, the
Legislature could have rationally concluded that the exclusion of an ability-to-pay
condition as to a local arrestee (under Gov. Code, § 29550.1) was appropriate, while
requiring such a condition for other (county and state) arrestees, because each of the latter
arrestees is potentially liable for a booking fee double the amount of the fee for which the
local arrestee is potentially liable.
As the Second District Court of Appeal, Division Six, held in rejecting a statutory
interpretation argument (adapted to our case here): “In essence, [the defendant] asks us
to rewrite [Government] Code section [29550.1 to include a requirement that the court
find the defendant to have an ability to pay the fee]. We decline the invitation.”
(Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1696-1697.)
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment, striking the
sentence, “Advised of 7 years to life parole/appeal rights,” and replacing it with the
following: “Advised of appeal rights. Length of parole following release from prison
shall be set by the Board of Parole Hearings as provided by California law.” As
modified, the judgment is affirmed.
26
Premo, Acting P.J.
WE CONCUR:
Elia, J.
Bamattre-Manoukian, J.